“Fashion” brings to mind fashion shows with designer clothes but also anything else that is “current” and “in”, a particular “style” – everything from clothing to footwear, home decoration and furniture, accessories such as belts, bags, scarves, but also consumables such as perfumes and beverages. Fashion is with us everywhere, and it attracts not only buyers and users, but also illegitimate imitators and copyists.
While copying and imitation are cornerstones of competitive markets intellectual property rights of creators are similarly part of the basic rights. Inventions are protected by patents or utility models, distinctive signs by trademark law, and creations of the fashion industries receive protection under copyright law or design law. Design law received prominent recognition in the European Union when not only national design laws of the still 28 Member States were harmonized but, in addition, a single unitary design right was created in the early 2000s.
Design protection is the ideal intellectual property right for creations of the fashion industries. Protection through registration, valid up to 25 years, is easy to obtain and inexpensive. In addition, EU law provides for an exclusive design right for a period of three years even without registration for any design first used in the EU. This particular feature of European design law, not existing elsewhere in the world, was specifically created with originators in small and medium-sized enterprises as well as individual designers and sectors of industry in mind which produce large numbers of possibly short-lived designs for which the protection through a registered design is not really needed.
Many creations of the fashion industries would also qualify for copyright protection, which is available for works with a creative character. Copyright protection is available everywhere in the European Union from the date of creation, under the laws of each of the EU Member States.
In addition to design law and copyright law, fashion products may also be protected against misappropriation under unfair competition laws. Germany has a particularly developed case-law on preventing “me-too” imitators exploiting the commercial value of successful products, including such fashion items as shoes and handbags.
BARDEHLE PAGENBERG has repeatedly been successful in representing clients in disputes about fashion rights – either defending against accusations or helping to enforce rights under design or copyright or unfair competition law. For instance, the firm was victorious in representing a famous global fashion brand to prevail over a Community design infringement accusation before the German Federal Supreme Court. BARDEHLE PAGENBERG was also successful in helping a German art professor and painter to prevail over a local fashion label in a copyright dispute (motifs from some of the artist’s paintings were used on skirts and dresses manufactured and distributed without his consent).
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